Delicate, Difficult Task for Geragos

REDWOOD CITY, Calif. — As defense attorney Mark Geragos tries to persuade a jury not to impose the death penalty on convicted spouse-killer Scott Peterson, he confronts a criminal trial lawyer’s most delicate and difficult courtroom task.

He must tell the same panel that rejected claims of Peterson’s innocence that his client should be spared -- that life in prison is penalty enough.

And he must do so without admitting that Peterson, 32, did indeed kill his wife, Laci, and their unborn child, Conner. Peterson was convicted Nov. 12 on one count of first-degree murder and one count of second-degree murder.

According to defense attorneys who have been in similar situations, Geragos’ challenge is a legal and emotional tightrope walk that, if unsuccessful, will undoubtedly be second-guessed by Peterson family members and attorneys filing a subsequent legal appeal.

To save a client from the death penalty can be the crowning achievement of a legal career. But to lose is a crushing blow, lawyers say -- a sense of failing a client it has taken months and sometimes years to get to know.

“It’s very difficult, very painful,” said Daniel Cook, a Contra Costa County public defender whose client was recently sentenced to death for the killing of five people, including the gruesome slaying of the daughter of guitarist Elvin Bishop.

“You’ve just asked people to spare your client’s life and they’ve said ‘no.’ When that jury says ‘death,’ it’s tough, really tough.”

In this latest highest-of-stakes courtroom drama, Geragos has chosen what many courtroom observers have called a “misdirected” strategy.

The twofold approach on one hand appeals to any doubts jurors might have about their verdict, given that prosecutors were unable to produce physical evidence linking Peterson to the crime.

But his legal team is also calling at least 30 relatives and friends to spell out the effect a death penalty would have on the killer’s family -- particularly his ailing mother, Jackie Peterson, who because of respiratory problems has attended court with a portable oxygen tank in tow.

Friends and relatives testified over three days last week and more are expected to testify Monday. Jurors in the penalty phase of the trial could receive the case by midweek.

Instead of bluntly begging the jury to spare their son, brother and friend, the witnesses refrained from expressing emotion, calmly recalling Peterson as a caring, almost saintly humanitarian. His older brother told of teaching Peterson to ride a bike and a childhood friend described their “countless hours on the golf course.”

That Norman Rockwell-like portrayal conflicts sharply with the prosecution’s case, which paints the former Modesto fertilizer salesman as a liar, philanderer and monster who strangled or smothered his 27-year-old pregnant wife on Christmas Eve 2002, dumped her body into the San Francisco Bay, and, a few weeks later, ordered hard-core pornography cable channels.

For a defense lawyer, the penalty phase of a capital punishment case is “the biggest burden the legal system can put on any lawyer,” said Loyola Law School professor Laurie Levenson.

For prosecutors seeking the death penalty, the task is more straightforward. They also have dramatic tools at their disposal, including the emotional moment of having the victim’s family confront the killer in court.

Laci Peterson’s mother, Sharon Rocha, testified last week, glaring at her former son-in-law and screaming, “Divorce is an option, not murder!”

Rocha later alluded to San Francisco Bay, where the bodies of her daughter and the fetus washed ashore four months after Laci disappeared.

“Laci had motion sickness, and you knew that,” Rocha said. “That’s why you dumped her into the bay. You knew she’d be sick for eternity!”

Some prosecutors have employed theatrics in their penalty phase presentations.

Levenson, a former federal prosecutor, once brought a knife into court, “stabbing, stabbing, moving the knife up and down” over the course of the minute it took to kill the victim “so the jury could relive the horror of the moment.”

Levenson described how she once gave a jury a detailed picture of what it was like to be choked to death, showing “every stage of the pain, the pain and the crushing, all the way down to the point the victim finally loses consciousness.”

Geragos, she said, had more limited options.

“Frankly, he knows that jurors don’t have much compassion for Peterson, so he’s not playing that card,” she said. “In fact, they detest Scott Peterson. So they’re going to try to find some sympathy any way they can.”

Robert Talbot, a law professor at the University of San Francisco, believes that Geragos and his defense team are waging a credible campaign. He also praised the usually flamboyant Geragos for taking a more humble approach in the final days of the six-month-long trial.

“Mark Geragos is doing a low-key but effective job of shifting the focus back onto the Peterson family, of pulling attention away from the horror of the crime to the impact on this family.”

But Monica Morrissey, a Santa Monica-based defense attorney whose clients include Yosemite killer Cary Stayner, whom a jury sentenced to death, called it a mistake for any defense lawyer to make the killer’s family the centerpiece of the death penalty defense.

“Remember, the other family is also sitting there,” she said. “They’ve already suffered a death. And there’s nothing, no way to address their loss.”

Morrissey said every good defense lawyer enters a trial carrying a possible capital punishment verdict with the knowledge that he or she might lose the case and one day be appealing to the jury to spare a life.

“It’s hard. But it has to be done,” she said. “And you have to do it without anger, without rancor, and without telling the jury outright or by your attitude that you disrespect their verdict. It’s very, very tricky.”

Chuck Smith, a courtroom watcher and former prosecutor, is one of those critical of Geragos’ approach.

“I don’t think the defense presentation has been effective at all,” Smith said.

“The Peterson side of this case is not going to win the emotional tug of war for the hearts and minds of the jurors. It would be entirely appropriate for the defense to put family members up there to say, ‘We love him. Please don’t kill him.’ We haven’t heard that yet.”

Instead of pathos or outright pleas for Peterson’s life, jurors have listened to stories about his “life with every privilege life has to offer -- and golf, golf, golf, the very game of privilege,” Smith said.

“I’m sure that after hearing Peterson described as a gentleman some jurors are thinking, ‘Right, and a coldblooded killer,’ ” he added.

As Geragos faces the life-or-death call, Cook, the public defender, has some advice: Juries can smell insincerity in an attorney.

“There’s something about getting 12 minds together in a jury box. It’s like a super computer: The collective power is greater than any single individual on it,” he said.

“Don’t try to pull the wool over their eyes. Because the minute they sense any phoniness or trickery or fakery, you’re done. And your client is done as well.”